Updated: May 2, 2021 8:33:28 pm
A DAY after the Delhi High Court threatened to initiate contempt proceedings if its direction on supplying 490 MTs of medical oxygen to the national capital was not complied with, and asked the Centre to arrange cryogenic tankers as well for the national capital, the union government approached the court on Sunday on an urgent mentioning and sought recall of the order.
It also alleged that “apathy on part of the Delhi government has become a regular and daily affair”. The court was also told by the Centre that the allocation of Delhi has been increased to 590 MTs but it is receiving only some 440 MTs on a daily basis.
The central government through Solicitor General Tushar Mehta said “great harm” would be caused to the “system” in place against the Covid-19 pandemic if the court decides to go into the legal aspect of whether the responsibility to arrange tankers in the constitutional scheme would be of Centre or the state.
“It would cause serious harm to the total management of Covid-19 in the country. It is not the right time to decide constitutional issues whether tanker allocation is state subject or not. We are not in a position to have luxury of constitutional arguments,” Mehta told the court, saying it will “impair the entire nation” and the court cannot decide it when only one state has issues.
However, the division bench of Justices Vipin Sanghi and Rekha Palli said the Centre itself has raised the issue regarding the responsibility of tankers in its application and there has to be a resolution to the problem.
The court later asked the amicus curiae, senior advocate Rajshekhar Rao, to suggest ways and means of resolving the dispute which otherwise would require adjudication by it.
The court also said that Delhi is on a different constitutional footing after issuance of notification stating that the government of Delhi would mean Lt-Governor. However, the Centre submitted that it has been done “for different reasons”.
“These are allegations or counter-allegations. We are dealing with a much larger situation. We are dealing with hundreds of people, that is why we are exercising this jurisdiction,” said the court after hearing arguments of the Delhi government and Centre on the latter’s plea seeking recall of the order.
The court also said allocated liquid oxygen is not something “that can be carried in a gunny bag” and it requires special transport. It added that Delhi is not an industrial state and while it could requisition tankers from industrialists in other states – and even if they are in turn willing – the other state governments may not allow it.
“Every day we are being told there is a shortage of oxygen. The stated position is that oxygen is in excess of what demand is on an all-India basis,” said the court. However, Mehta said, “if used judiciously, the country is in a position to meet the demand”.
The court also said that experts of the Centre have worked out a guideline or formula on oxygen allocation and must supply oxygen according to the same principle. “Nobody is questioning their judgement… apply that formula and if according to that whatever it comes… if it comes to 500 or 700 or 800 we are not concerned,” said the court.
However, Mehta submitted, “that would be a wider issue. It would affect supply of other states”.
The court, while issuing a notice to the Delhi government and seeking a response from it to the Centre’s application for recall of order, said it would hear the issue regarding Delhi’s allocation on Thursday.
The Delhi government said a great prejudice would be caused to the national capital if the court does not go into the issue regarding tankers too and decide legally. The court also said contempt proceedings are the last thing on
its mind in the present situation.
However, Mehta in his preliminary submissions said the court asking why Maharashtra or Madhya Pradesh are getting more would have its own implications: “Why something is more and something less may not perhaps lie in Delhi High Court.”
The bench said it would hear on that aspect and was not averse to the submission that “you should not consider a particular aspect which may not lie before us”.
In the application, the Centre said the Delhi government is found to be “completely wanting in making any efforts
whatsoever to arrange for the transport of the quantity allocated to it except for a few tankers” and that many other non-industrial states have managed their own state.
The Delhi government seems to be only interested in using the platform of the High Court “to communicate or raise its demands in a farcically and misleading manner”, it added further.
“It is submitted that the Union of India is further constrained to state that rather than discharging its constitutional, statutory, and humanitarian duties and obligations in the times of the present crisis, the GNCTD seems to be channeling most of its energies in creating a facade to cover up its complete incompetence/incapacity, especially at the end of the last-mile delivery,” the Centre said.
It also said whatever oxygen is being supplied in Delhi is “also not being distributed and utilised in a judicious manner causing serious risk to the lives of residents of Delhi”. The internal distribution of oxygen, management, and supervision of admissions and other things shall have to be done by Delhi, the union government said.
Seeking recall of Saturday’s order, the Centre in its application said there would be “chaotic situation” in the country if other states start following suit and shirk from their responsibility of providing road transport.
“The internal distribution of oxygen amongst hospitals by GNCTD appears to be clearly unscientific and is in complete disarray. It appears that GNCTD issues orders without consulting stakeholders which results in disruption of established supply chains as well as further confusion to others intended to be served through the new supply chains,” the central government said, adding that Delhi has been the only state raising issues “and trying to create a narrative in the ongoing court cases about the supply of oxygen whereas the fact of the matter is that they are unable to fulfil the promise and lift the oxygen allocated to them”.
The Delhi government called the application “uncalled for” and opposed the recall of order.
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